The opinion of the court was delivered by: Lefkow, District Judge.
MEMORANDUM OPINION & ORDER
Defendant City of Chicago ("the City") presently moves to
dismiss plaintiff's amended four count pro se complaint
pursuant to Federal Rule of Civil procedure 12(b)(6) or,
alternatively, strike counts II through IV pursuant to Federal
Rule of Civil procedure 12(f). For the reasons articulated
below, the court dismisses counts III and IV and denies the
City's motion for counts I and II.
A motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) challenges the
sufficiency of the complaint for failure to state a claim upon
which relief may be granted. General Electric Capital Corp. v.
Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997).
Dismissal is appropriate only if it appears beyond a doubt that
the plaintiff can prove no set of facts in support of its claim
that would entitle it to relief. Conley v. Gibson,
355 U.S. 41, 4546, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Kennedy v. Nat'l
Juvenile Det. Assoc., 187 F.3d 690, 695 (7th Cir. 1999). In
ruling on the motion, the court accepts as true all well pleaded
facts alleged in the complaint, and it draws all reasonable
inferences from those facts in favor of the plaintiff. Jackson
v. E.J. Brach Corp., 176 F.3d 971, 977 (7th Cir. 1999); Zernke
v. City of Chicago, 100 F.3d 511, 513 (7th Cir. 1996). With
regard to Federal Rule of Civil Procedure 12(f), that rule
provides that "the court may order stricken from any pleading
. . . any redundant, immaterial, impertinent, or scandalous
matter." The court generally disfavors motions to strike. WTM,
Inc. v. Henneck, 125 F. Supp.2d 864, 869 (N.D.Ill. 2000).
Title 13 of the Municipal Code of Chicago (the "Ordinance")
prohibits the use of burglar bars that prevent egress from a
residence.*fn1 Plaintiff, an African American, is a tenant in
a Chicago apartment building cited for violating this Ordinance.
On July 20, 1999, plaintiff filed this lawsuit alleging that the
City violated his equal protection rights because the City does
not equally enforce the Ordinance on all races in Chicago. On
January 20, 2000, Judge Norgle granted the City's Motion to
Dismiss because plaintiff had failed to allege sufficient facts
to support a claim of race discrimination. Plaintiff was granted
leave to amend and filed the amended complaint presently before
this court on March 9, 2000.
Plaintiffs amended complaint contains four separate "issues,"
which this court will refer to as "counts." Count I alleges that
the City's "burglar bar" ordinance violates his equal protection
rights because it is only enforced against "certain people."
Specifically, plaintiff alleges that the City does not enforce
the ordinance against residents of the Bridgeport area. Count I
also repeatedly alleges that the City cannot produce evidence
showing that it informed its residents of the burglar bar
ordinance or that it asked merchants to restrict the sales of
burglar bars to the City's residents. Count II alleges that
plaintiff received a parking ticket on September 21, 1999 in
retaliation for filing this instant lawsuit. Count III alleges
that the City of Chicago refuses to allow African Americans to
live in Chicago's Bridgeport neighborhood in violation of the
Fair Housing Act and Civil Rights law. Count IV alleges that
plaintiff was denied due process in connection with plaintiffs
1996 arrest for solicitation of a prostitute.
Count I: Equal Protection
In count I, plaintiff alleges that the Ordinance is enforced
differently on the basis of race, violating his equal protection
rights. (Am. Compl. at 2.) In particular, plaintiff claims that
the City cannot prove that it has enforced the Ordinance in
Bridgeport, a predominantly white neighborhood. (Id.)
Plaintiff also alleges that the City should have provided some
form of notice of this Ordinance to merchants who sell burglar
bars and to city residents. (Id. at 2-3.)
This case bears a striking resemblance to Anderson v. City of
Chicago, 90 F. Supp.2d 926 (N.D.Ill. 1999), where the district
court found that a pro se plaintiff had pled an equal
protection claim when he alleged that the City of Chicago
selectively enforced a city ordinance against him because of his
race. The court stated, "[b]ecause it is possible that Anderson
could prove that the City singled out his property for citation
because of his race, thus engaging in a form of selective
prosecution in violation of the equal protection clause, we will
not dismiss his equal protection claim at this time." Id. at
928. Like the plaintiff in Anderson, plaintiff here alleges
that the City selectively enforced the Ordinance based on race
and, therefore, has stated an equal protection claim.*fn2
In count II, plaintiff alleged that he received a parking
ticket on September 21, 1999 from Chicago police officers
because his car was blocking an intersection near his residence.
(Am. Compl. at 3.) Plaintiff claims that the ticket was given in
retaliation for this lawsuit. (Id.)*fn3 Plaintiff alleges
that one of the officers said, "I am here to change things."
(Id.) Plaintiff added that he continued to park in the same
area after complaining to the City's attorney in this matter and
received no additional tickets. (Id.)
Count II of plaintiffs complaint bears a striking resemblance
to plaintiffs 1995 lawsuit against the City, where he alleged
that in retaliation for complaining to Mayor Daley that the
police never responded to his call that his home was
burglarized, the City issued him three parking tickets. See
Thomas v. City of Chicago, No. 95 C 5589, 1996 WL 422275
(N.D.Ill. July 24, 1996). In that case, the court held that
plaintiff had failed to state a claim for retaliation for
exercising his First Amendment rights because plaintiff failed
to allege that his letter to the Mayor touched on matters of
public concern. See Lashbrook v. Oerkfitz, 65 F.3d 1339, 1349
(7th Cir. 1995) ("In order to state a claim for retaliation for
exercising first amendment rights by petitioning the government
for redress, a plaintiff must allege that the
petition touched upon matters of public concern.") The ...